Dwarka Nath Bysack v. Burroda Persaud Bysack

Appeal from a decree passed by Mr. Justice Pontifex in the Original Civil Jurisdiction of the High Court.

This was a suit for a declaration of plaintiffs' rights to undivided shares in ancestral joint estate, for construction of the will of Kristo Mohun Bysack, for a declaration of plaintiffs' rights in his estate, for administration, for an injunction and an account, and for the appointment of a trustee in place of the defendant.

Kristo Mohun Bysack died on the 19th of April 1870. By his will he bequeathed nearly all his property to the defendant in trust for certain charitable purposes, and appointed the defendant his executor, who proved the will in solemn form and got probate on the 9th of March 1871. The plaintiffs who were not parties to the administration suit, claimed that eight annas of the property in the defendant's possession as executor, belonged to them in their own right; they also claimed that the disposition of the property made by the will was void, and alleged that the defendant had wasted the estate. In this will the testator, after giving directions regarding payment of certain legacies, empowered the defendant, his executor, to collect the rents and profits of his property and hold them in trust for the following purposes, ??? others:

“I do hereby direct my trustee to feed the really poor and needy at Gopeenathjee, out of a separate expense out of my estate to be contributed to the worship of Luckheejunardinjee, my ancestral goddess.

“I do hereby direct my trustee to spend suitable sums at the annual shradh or anniversaries of my father, mother, and grandfather, as well as of myself after my demise for the performance of the ceremonies and the feeding of the Brahmins and the poor. To spend suitable sums for the annual contribution and gifts to the Brahmin Pundits holding tolls or native schools for the diffusion of Sanscrit learning in the country at the time of the Doorga Poojah. To spend suitable sums for the perusal of Mahabharut and Puran, and for the prayer to God during the month of Kartick. Should there be any surplus after the above expenditure, then I do hereby direct my trustee to spend the said surplus in the contribution towards the marriage of the daughters of the poor in my class and of the poor Brahmins, and towards the education of the sons of the poor amongst my class and of the poor Brahmins and other respectable castes as my trustee will think fit to comply.”

It was upon the construction of this last clause that the case mainly turned. The plaintiffs applied for an interlocutory injunction for the purpose of restraining the defendant from dealing with the testator's estate. The application was refused, and the case came on for hearing.

Evans, Bonnerjee and Stokoe for the Plaintiffs.

Stokoe.—The plaintiffs contend that the property of which Kristo Mohun died possessed was not his separate property, but was joint property, of which they are entitled to a share; so far they claim against the will. They also contend that all the provisions of the will are void for uncertainty; that, therefore, Kristo Mohun died intestate as to this property, and plaintiffs are his nearest heirs.

[Pontifex, J.—The gift of the surplus for education is not uncertain.]

But it was only a surplus that was to go in that way. The testator never intended that the whole of his property should be spent in education. He never contemplated that the gift preceding the gift of the surplus would be void, and has made no provision therefor. The surplus is, therefore, incapable of being ascertained.

Phillips, for the Defendant, supported the will.

Pontifex, J.:—

[The claim against the will was tried separately and dismissed; costs reserved.]

Plaintiffs claim to be entitled in their own right to a moiety of the properties of which the defendant has possessed himself as executor of his testator, alleging that such properties are joint family properties in which they have an eight annas share. I have already disposed of that part of the case by deciding, on the evidence, that the properties in question were not joint properties, but, on the contrary, were the separate properties of the testator.

The plaintiffs, however, claim to be the heirs of the testator, and allege that, upon a proper construction of his will, part of his property is undisposed of, and that they, as his heirs, are entitled thereto as upon an intestacy. This part of the case has been argued merely on the construction of the testator's will; and the defendant has had no opportunity of contesting by evidence the alleged heirship of the plaintiffs. Probably, he would not be able to disprove the plaintiffs' evidence of such heirship; and, for the purposes of this decision, I will assume that the plaintiffs are the heirs of the testator. The argument has been confined to the last clause of the will which is written in very imperfect English.

In the administration suit, to which this suit is prayed to be supplemental, the prior bequest for feeding the poor at Gopeenathjee, and for the worship of Luckyjunardingee has been recognized as valid; and an enquiry has been directed with respect thereto.

But the decree in the administration suit does not deal with the last clause in the will, possibly, for the reason that induced Lord Cottenham to postpone the decision of a similar question to ford v. Reynolds (16 Sim., 108), viz., the uncertainty whether any residue would exist until shewn by the taking of the accounts. But as one of the main objects of the present suit is to obtain a decision upon the validity of the residuary gifts in the will, and as the plaintiffs' title to sue depends upon the alleged invalidity of such gifts, I think it would serve no useful purpose if I further postponed the decision of this question of construction.

As I understand the plaintiffs' arguments, they assert that the directions in the last clause of the will, that the trustee should spend suitable sums upon the annual shradhs of the testator and his ancestors, and for the feeding of the Brahmins and the poor at such ceremonies, as also the direction that the trustee should spend suitable sums for the annual contribution and gifts to the Brahmin Pundits holding tolls for learning at the time of Doorgah Poojah, and also the direction to spend suitable sums for the perusal of Mahabharat and Puran and for the prayer of God during the month of Kartick, are so vague—the exact amount of the sums to be laid out not being specified—that the amounts are, in fact, unascertainable; and, consequently, that the subsequent directions to the trustee to spend the “surplus” in what is admitted on behalf of the plaintiffs to be otherwise a good and valid bequest, must also fail as being void for uncertainty, since the amount of such surplus cannot be ascertained. No authorities were cited in support of this argument, which, however, raises a question of considerable difficulty, and is, in fact, the subject of conflicting authorities.

In the case of Chapman v. Brown (6 Vesey, 404,) a testatrix gave the residue of her estate to executors to be applied for the purpose of building or purchasing a chapel, and if any “over-plus” should remain, she directed it should be applied for certain charitable purposes, which direction would of itself have been a valid disposition of the a “surplus.” In that case the bequest for the chapel was held to be illegal as infringing the Statute of Mortmain; but Sir William Grant was of opinion that if there had been any possible way of ascertaining the proper amount which, if the gift for the chapel had been valid, the executors ought to have expended on the chapel, then the amount of the surplus might have been ascertained, and the gift of the surplus would have been good. But he held that, inasmuch as there ware no mean of ascertaining the amount which ought to have been expended on the chapel, the amount of the surplus was also unascertainable, and the gift of the “surplus” was, therefore, void for uncertainty.

In the later case of Mitford v. Reynolds, (1 Phillips, 185) a testator directed the purchase of a particular piece of land on which were to be constructed a vault and a monument; and he bequeathed the residue of his estate to the Government of Bengal for valid charitable purposes. Lord Lyndhurst decided that even if the first bequest was illegal or incapable of being carried into effect by reason (as afterwards happened) of the owner of the particular piece of land refusing to sell it, still the amount which it would otherwise be proper to expend was ascertainable, and, therefore, the gift of the residue was not void for uncertainty.

The ultimate decision of this last case (in 16 Simon, 105), however, rested on a different ground, viz., that upon the construction of the will the residue bequeathed was a residue found after providing for the debts, legacies and monument; and, therefore, that the money which would have been devoted to the monument if the directions with respect thereto could have been carried out, fell into the residue as in the case of any other void bequest.

These conflicting cases have been commented on by Lord Hatherley, when Vice Chancellor, in Fisk v. Attorney General, L.R 4 Eq., 524.

Now, applying these authorities to the case before me, it seems to me that, with respect to each of the gifts which are objected to by the plaintiffs, even if it was illegal, still the amount which otherwise it would be proper to expend on it could be ascertainable, and consequently the amount of the surplus, if any, would also be ascertainable. An inquiry might be directed what turns the testator himself had during his life been accustomed to expend on these particular objects, or what sums are usually expended in similar circumstances by families with means corresponding with the position of the testator; and it appears to me that it would not be difficult to arrive at an ascertainable conclusion ??? respect thereto, and consequently that the gift of the ??? be sufficiently definite and valid. If, however, the ??? mediately preceding the bequest of the surplus ??? other reason invalid, and if the gift of the surplus could not be treated (as in the ultimate decision of Mitford v. Reynolds) as an ordinary residuary bequest, the plaintiffs, assuming them to be the heirs of the testator, would be entitled to the amounts of the invalid bequests as undisposed of by the will. But I am of opinion that their claims fail in both these particulars.

First, I think that all these gifts, if the amounts of them can be ascertained—and I have said it seems to me that such amounts are ascertainable—are valid testamentary bequests, and such as a Hindoo testator can lawfully make; and, secondly, I think the words “should there be any surplus after the above expenditure,” occurring in this informal will, must be construed as creating a general residuary bequest; and, consequently, that the preceding bequests, even if invalid, would fall into the residue as in the case of any other void bequest.

Some argument was addressed to the employment by the testator of the word “surplus” as meaning something different from “residue,” but it seems to me that the words have identical meanings; one meaning “that which is over,” and the other “that which is left;” and I may observe that they are treated as identical in meaning in section 2 of the Hindoo Wills Act (which however does not govern this will), and also by the plaintiffs themselves in paragraph 15 of the plaint.

The result, therefore, of the case is that I am of opinion that the plaintiffs fail on all points; and I must, therefore, dismiss the suit, and order them to pay the whole costs.

The plaintiffs appealed.

Evans and Bonnerjee, for the Appellants.

Evans—Our first contention is, that the gifts in the last clause in the will are void, and that we are entitled as on an intestacy. Even if they are not void, if these vague intentions could be carried out, yet we allege that Burroda Persaud has misconducted himself, and claim that he should be removed from the management of the trust property. As regards this latter claim, it may be objected that we are uninterested parties, that we have no locus standi; but this is a mistake. We are the nearest heirs; it is we alone who can perform the shradh for which suitable sums are to be spent; and, finally, the estate is vested in us; for the executor of a Hindu will is a mere manager who takes no estate in the property unless it is expressly given to him, which is not the case here. The estate which must be vested somewhere is vested in us who are the nearest heirs, subject to the defendant's power of managing it for the purpose of carrying out the valid trusts (if any) contained in the will. There are no valid trusts contained in the last clause of this will. As regards the “suitable sums” for the performance of the shradh, no doubt that could be ascertained, and we, as the proper persons to perform it, should have a voice in the matter; but it is impossible to find out the proper sums to be expended on the Brahman Pundits and for the perusal of Mahabharat. As for the surplus, the trustee is empowered to spend as much of the surplus as he likes, and if he were a near relation of the testator's it might be fairly argued that he should take it beneficially, but this argument is destroyed by the next paragraph in the will which says that he is to be a trustee for the purpose of carrying out the foregoing directions. We do not admit that the gift of the surplus is good; if, as the learned Judge says, such an admission was made in the Court below, then it was an admission of law which the Tagore case shows is not binding.

[Garth, C.J—Do you contend that there is no mode of ascertaining what should be paid out to these Brahmins?]

Evans.—Yes, my Lord. Your Lordships will remember that there is a great distinction between public and private charities. The leaning of the Courts in favour of public charities is purely exceptional, and arose out of the construction which was put upon the Statute of Elizabeth in favour of charitable uses—43 Elie., Ch. 4. Apart from that Statute, the ordinary rule is that the bequest will be void if the amount or the objects are uncertain. This ordinary rule will prevail where, as in this case, the equitable extension does not apply, and here both amount and objects are uncertain. The present case in that of a private charity which is merely benevolence; it is in its nature indefinite, and the Court will not, on that account, take it up. The tolls are certainly private. The alms at Doorga Pooja and the sums for the reading of the Puran ??? clearly not public. [During his argument on this point counsel ??? Srimati Jaykali Debi v. Shibnath Chatterjee, 2 B.L.R, O.C, 1; Chapman v. Brown, 6 Vesey, 404; Mitford v. Reynolds, 1 Phillips, 185; 16 Simon, 105; Attorney-General v. Hingsen, 2 Jac. and W., 270; Morice v. Bishop of Durham, 10 Vesey, 522; a case in Fulton's Reports, p. 275; Fisk v. Attorney-General, L.R, 4 Eq., 521; Hunter v. Bullock, L.R, 14 Eq., 45; Dawson v. Small, L.R, 18 Eq. 114; Fowler v. Fowler, 33 Beavan, 616; Ommaney v. Butcher, 1 Turn, and Bus., 260.] Supposing your Lordships he adverse to us on the question as to the validity of these gifts, yet we say that there has been gross misconduct on the part of this trustee; that we alone can perform the shradh, for which we are to get suitable sums; and that the testator's estate is wasted. In the face of such circumstances we are surely entitled to an account as the estate is vested in us.

Jackson—This matter was never raised in the Court below.

Evans.—The facts supporting it are here on the face of the plaint. I certainly raised it when I opened the case; and, as far as I know, it was not abandoned.

[After some further discussion, the Court ruled that this point could not be taken on appeal. It was not raised on the settlement of issues in the Court below; nor was any objection made on that ground when the learned Judge of that Court delivered his judgment.]

Jackson, Phillips, and Pearson, for the Respondents.

Phillips.—There are two things to be considered in this case, in connection with the last clause of the will: The first is whether the prior bequests contained in that clause are void; and as to this, it has been contended that they are void on the ground of vagueness. All the cases, however, which have been cited by Mr. Evans, go to show what is the well-settled rule, namely, that however vaguely or generally a charity may be directed to be carried out, the Court will uphold it on the ground of its being a general charity. The next matter to be considered is what becomes of the money supposing these gifts are void; and as to this we contend that it falls into the residue where, as in this case, there is a valid residuary gift. It must be remembered that the residue of a residue stands in a different position from the residue of an estate. If the void gift is a part of the residue it will not fall into the residue of the residue, but go as on an intestacy, and this is 1 what was decided in Chapman v. Brown. But where the void gift is not a part of the residue, it will fall into the residue, and this is what was decided in Mitford v. Reynolds. The latter is precisely the case here. The testator clearly intended the gift of the surplus to be a residuary gift—a gift of the residue—and what would not be expended in any other way should go into it. The object of the residuary gift, at least, is a good public charity; and where there is expressed a public charitable intention as well as a private charitable intention, then if the private one be void the public one will be carried out. Even if it should be held that the object of this residuary gift is not a public but a private charity, still it is in no respect vague, and the cases cited on the other side do not apply.

Evans, in reply:—

The first point taken by Mr. Phillips is that, though these gifts and legacies may be void, yet if there is a general intention to give in charity, the King as parens patrice will see it carried out. Now this principle depends on the Statute of Elizabeth which does not apply to such gifts as those in this case. Hindu charities are private charities, and it is as private charities that they are upheld. A shradh does not come under the Statute of Elisabeth. Money for Brahmins holding tolls is also private. It is not given to found schools for Sanscrit learning, but is given merely as a present at a particular time of the year—something in the nature of a Christmas box. The same observations apply to the reading of the Puran and Mahabharat. The second point made was as to the residue. Now the whole groundwork of the doctrine of throwing everything into the hands of the residuary legatee is explained in the case of Sadler v. Turner, 8 Vesey, 617, which shows that there must be words used which show a clear intention to that effect on the part of the testator. It is very dangerous to apply the English doctrine of residue to a Hindu will ??? where the testator himself does not use the word. He says merely that the surplus, if there is any, is to go. The case of the Attorney-General v. Johnson, 2 Ambl., 577, is exactly ??? here, and shows that the gift of a surplus, “if there is ??? not carry everything remaining to the residuary legatee. You are not to introduce here the technical terms of English Law, but to read the will in a plain way and ask what the testator meant to do. It is clear that he never meant the most of his property should go as “surplus.” It is not enough in order to the testate, that a testator has an intention of disposing of his property; he must actually do it. (See Jarman on Wills, vol. 2, pp. 660, 734.) Here the testator says he is disposing of the surplus which may arise out of a fund certain. It is only a gift of a possible overplus, and there is nothing in the will that supports a gift of the residue.

The judgment of the Court(1) was delivered by Garth, C.J:—

Only two questions are raised in this appeal: first, whether certain bequests made by the testator are valid; and, secondly, whether if they are invalid, a residuary bequest which follows them is invalid also.

The clause of the will, upon which the question arises is as follows: “I do direct my trustee to spend suitable sums at the annual shradhs or anniversaries of my father, mother and grandfather, as well as of myself after my demise, for the performance of the ceremonies, and the feeding of the Brahmins, and the poor. To spend suitable sums for the annual contribution and gifts to the Brahmin Pundits, holding tolls or native schools for the diffusion of Sanscrit learning in the country at the time of the Doorga Poojah. To spend suitable sums for the perusal of Mahabharat and Puran, and for the prayer to God during the month of Kartick. Should there be any surplus after the above expenditure, then I do hereby direct my trustee to spend the said surplus in the contribution towards the marriage of the daughters of the poor in my class, and of the poor Brahmins, and towards the education of the sons of the poor amongst my class, and of the poor Brahmins, and other respectable castes as my truces will think fit to comply.” The learned Judge in the Court below considered that all these bequests were valid. We have some doubt whether, if it were necessary to decide the question, we could agree with him as regards the bequests to Pundits holding tolls, and for the reading of the Mahabharat and Puran, and for the prayer to God.

It is not, however, necessary for us to decide this point, bee the learned Judge has held that the concluding words of the clause commencing thus, “Should there be any surplus after the expenditure, &c.” must be construed as creating a general duary bequest, which would absorb the whole of the property even assuming that some of the preceding bequests were invalid. In this view we quite agree; and, as the appellants could only succeed in the event of there being a surplus undisposed of by the will, we think their suit must be dismissed with costs, and that they must also pay the costs of the motion for the injunction.

Their learned Counsel attempted to argue, that in any view of this case they were interested as heris of the testator in the performance of the shradhs of the testators' ancestors; that they were in fact the only persons who could perform those shradhs; and that, therefore, they had upon this ground alone a right to the account against the defendant as trustee under the will, which it was one of the objects of this suit to obtain. But as that point was not raised in the Court below, nor mentioned in the plaint, we decline to allow it to be raised here.